Hussainkhan Haider Khan v. Pandurang Govind Bhatta
1993-09-06
A.D.MANE
body1993
DigiLaw.ai
JUDGMENT - MANE A.D., J.:—A somewhat interested point is involved in this revision application in regard to the limitation prescribed under Article 136 of the Limitation Act, 1963. 2. The petitioner is a judgment debtor whereas the respondent is a decree holder. In Special Civil Suit No. 46/1968, the respondent obtained a decree for partition, separate possession and mesne profits. The decree was passed on 27-2-1970. On application filed by the respondent on 16-3-1971, claiming Rs. 9,000/- as mesne profits, an ex parte order was passed on 2-11-1971 directing the judgment debtor to pay to the decree holder as sum of Rs. 9,000/- as mesne profits. It was also directed that the decree holder should pay the requisite court fee stamp on Rs. 9,000/-. The decree holder, however, did not pay the court fee stamps nor has he taken any steps for execution of the said decree from 29-11-1971 to 22-7-1990. On 27-3-1991 he filed application being Darkhast No. 8/91 for execution of decree of mesne profits for Rs. 10,671/-. 3. In answer to the show cause notice issued to the judgment debtor, he objected to the execution. The main objection of the judgment debtor was that the execution application is barred by limitation on account of its having been made long after expiry of the period of 12 years as prescribed under Article 136 of the Limitation Act, 1963. 4. While overruling the said objection, the learned Civil Judge, S.D., Nanded has taken a view that there was no time limit fixed by the Court for payment of Court fee stamp. Moreover, the Court fee stamp was accepted by the Court by condoning the delay. The original order was also vague as no specific time limit was placed on the decree holder to pay the Court fee stamp and as such delayed payment of Court fee stamp cannot be considered a ground for dismissal of the execution application. Apart from that, what is more important to note is that according to he learned Judge, the decree became executable only on 3-12-1990 the date when the decree holder paid the Court fee stamp and, therefore, application for execution was well within the time. 5. Shri Mandlik, learned Counsel for the petitioner — judgment debtor submitted that the view taken by the learned trial Judge is patently illegal.
5. Shri Mandlik, learned Counsel for the petitioner — judgment debtor submitted that the view taken by the learned trial Judge is patently illegal. Relying upon decision in case of (Yella Appa Rao v. Nagam Veerraju)1, A.I.R. 1962 A.P. 385, the learned Counsel submits that the limitation for execution of final decree commenced on the date of final decree and non-payment of court fees does not arrest the running of limitation. 6. Really speaking, in a case like the present a two fold question arises for consideration in order to determine as to whether the execution of decree is barred by law of limitation under Article 136 of the Limitation Act, 1963. The first important question is whether the decree which was passed by the Court was not enforceable at once because it provided that the decree holder to pay the Court fee stamp on Rs. 9000/-. The second equally important question is whether the time begins to run from the date when the decree holder deposited the Court fee stamp on the aforesaid amount. Article 136 of the Limitation Act, 1963 prescribed the period of limitation as 12 years for the execution of any decree otherwise than a decree granting mandatory injunction. The time from which period begins to run is also prescribed in the Article. The period of limitation prescribed in Article 136 is 12 years for execution of the decree or order of any Civil Court and the time begins to run when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at ascertain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place. Now, the contention of the judgment debtor is difficult to accept. A decree can only be said to be not enforceable when it is not capable of execution on the d date when it is based on account of very terms of the decree. There must be something inherent in the decree which does not make postponing its execution to some contingency, which is to happen in future and which is beyond control of the decree holder, in the light of aforesaid provisions of Article 136 of the Limitation Act, 1963.
There must be something inherent in the decree which does not make postponing its execution to some contingency, which is to happen in future and which is beyond control of the decree holder, in the light of aforesaid provisions of Article 136 of the Limitation Act, 1963. There is a long line of cases wherein it has been ruled that limitation for execution of decree commences from the date of decree and on payment of Court fee does not arrest the running of limitation. In the present case it is not in dispute that the decree provides that the decree holder should pay the Court fee stamp over the decretal amount before its execution. That does not, however, mean that the decree is a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed. The payment of court fee on the amount found due was entirely in the power of the decree holder and there was nothing to prevent him from paying it then and there; and thus, it was a decree capable of execution from the very date it was passed. There was no hitch or hindrance for the decree holder to pay the Court fees directed by the decree immediately after passing of the same and then to execute it. In the circumstances, the decree must be deemed to be enforceable on 29-11-1971, when it was recorded by the Court and as such, the execution application was clearly barred by time. The judgment debtor's contention to save the execution application from the bar of limitation on account of its having been made long after the expiry of the period of 12 years as prescribed by Article 136 of the Limitation Act, 1963, therefore, fails. The view of the learned Judge of the Court below, therefore, cannot be accepted as correct in the facts and circumstance of the case. 7. The result, therefore, is that the civil revision application is allowed Rule is made absolute. The impugned order is quashed and set aside. Execution application of the decree holder is dismissed as barred by time. There shall, however, be no order as to costs. Revision allowed. -----